Operating Policies & Procedures

Operating Policy and Procedure

PURPOSE: The purpose of this Operating Policy/Procedure (OP) is to establish policies based
on federal laws and regulations governing the export of information, products, and
technology.

REVIEW: This OP will be reviewed in January of even-numbered years by the Office of Export
and Security with substantive revisions forwarded to the Vice President for Research

POLICY/PROCEDURE

1. Policy Statement

Regulations promulgated and enforced by the Department of Commerce, Export Administration
Regulations (EAR), and the Department of State, International Trafficking in Arms
Regulations (ITAR) prohibit the unlicensed export of specific technologies for reasons
of national security and protection of trade. If TTU research involves such specified
technologies, the EAR and/or ITAR may require the university to obtain prior approval
from the Departments of State or Commerce before foreign nationals may participate
in the research, before TTU can partner with a foreign company, or before a TTU researchers
may share research, verbally or in writing, with persons who are not United States
citizens or permanent resident aliens.

Current export law controls both hardware and information concerning a wide range
of commercial items and specially designated "defense articles" in a way that may
have a substantial impact on university research. Institutional research that is not
freely disseminated in the public domain may not qualify for the fundamental research
exclusion, limiting publication rights and international collaborations. The consequences
of violating these regulations can be quite severe, ranging from loss of research
awards to monetary penalties to jail time. Therefore, Texas Tech University's policy
is that principal investigators must conduct a thorough review of research projects
and contract provisions and determine if and how regulations affect a particular project.

2. Federal Regulations Definitions

Export control decisions depend on a correct understanding of the following terms.
The official regulatory definition should be consulted in specific applications.

a. The term export, as used in export control regulations, has an expansive meaning.
Generally, an export includes: 1) any oral, written, electronic, or visual disclosure,
shipment, transfer, or transmission outside the United States to anyone, including
a U.S. citizen, of any commodity, technology (information, technical data, or assistance)
or software codes; or 2) any oral, written, electronic, or visual disclosure, transfer,
or transmission to any person or entity of a controlled commodity, technology, or
software/codes with an intent to transfer it to a non-U.S. entity or individual, wherever
located (including a foreign student or colleague at Texas Tech University). The official
definition of export under the EAR and ITAR should be consulted when determining whether
a specific act constitutes an export. Export is defined in such a way to preclude
the participation of foreign graduate students in research that involves covered technology
without first obtaining a license from the appropriate government agency. The U.S.
government requires a license only for those exports on the export-controlled lists.
Most exports do not require prior approval of the U.S. government.

b. Deemed export – Transport of goods, items, or intellectual property outside
of the U.S. is not required for an export to take place. As a general proposition,
a "deemed export" (one requiring a license and imposing access restrictions occurs
when controlled technical data is released or otherwise transferred to a foreign person
in the United States

c. TThe Department of Commerce promulgates and implements the Export Administration
Regulations (EAR), Title 15, parts 730-774 of the Code of Federal Regulations (CFR).
The EAR regulates the export of goods and services identified on the Commodity Control
List (CCL), Title 15 CFR 774, Supp. 1. The unofficial text of the EAR and CCL are
available online at https://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear.

e. Commodity jurisdiction request – If a question exists the EAR or ITAR regulates
and article, the Office of Export and Security Compliance can submit a request to
the U.S. Department of State to determine which agency will have jurisdiction over
the export of the article.

f. Fundamental research, as used in the export control regulations, includes basic
or applied research in science and/or engineering at an accredited institution of
higher learning in the United States where the resulting information is ordinarily
published and shared broadly in the scientific community. Fundamental research is
distinguished from research that results in information restricted for proprietary
reasons or reasons of national security. University research will not qualify as fundamental
research if: (1) the university accepts any restrictions on the publication of the
information resulting from the research, other than limited prepublication reviews
by research sponsors to protect proprietary information or patent rights; or (2) the
research is federally funded and specific access and dissemination controls protecting
information resulting from the research have been accepted by the university or the
researcher. The citation for the official definition of fundamental research under
the EAR is 15 CFR §§734.8, 734.11. The ITAR citation is 22 CFR §120.11(a)(8).

g. Public domain, 22 CFR §120.11, refers to information that is published and is
generally accessible or available to the public: (1) through sales at newsstands and
bookstores; (2) through subscriptions available without restriction to any individual
who desires to obtain or purchase the published information; (3) through second class
mailing privileges granted by the U.S. Government; (4) at libraries open to the public
or from which the public can obtain documents; (5) through patents available at any
patent office; (6) through unlimited distribution at a conference, meeting, seminar,
trade show, or exhibition generally accessible to the public in the United States;
(7) through public release (i.e., unlimited distribution) in any form (e.g., not necessarily
in published form) after approval by the cognizant U.S. government department or agency;
and (8) through fundamental research.

3. Responsibilities and Procedures

Principal investigators are responsible for the following:

• Prior to commencing any research, to review and determine whether their research
is affected by the controls or requirements contained within the export regulations;

• To re-evaluate that determination before changing the scope of, or adding new staff
to, the project because such changes may alter the initial determination;

• To make export determinations far enough in advance to obtain an authorization from
the federal government, should it be required; and

• To assist OESC in development of technology control plans for export-controlled
projects.

The Office of Export and Security Compliance (OESC) will assist PIs in assessing the
application of such regulations, but primary compliance responsibility rests with
the PI of the research.

The Office of Research Services (ORS) will review all award documents to determine
whether there are references to U.S. export regulations or restrictions that would
prevent the project from being fundamental research under EAR and ITAR. For projects
that include these references or restrictions, ORS will notify the PI and OESC. OESC
will assist the PI in determining whether the research falls within a category of
technology covered by EAR or ITAR. For those projects that are covered by EAR or ITAR,
the PI, with assistance from OESC, will develop and implement a technology control
plan for the project and certify that procedures for handling the export-controlled
information are in place. Forms to document export control review and to certify procedures
for handling export-controlled information are available on the Export Control website.

The Office of Export and Security Compliance is responsible for the following:

• Determining if an export license is needed for research and related activities;

• Filing commodity jurisdiction requests and applications for export licenses with
appropriate U.S. government agencies;

• Determining if a technology control plan is needed for a research project; and